State v. McBride , 2023 Ohio 16 ( 2023 )

[Cite as State v. McBride, 2023-Ohio-16.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200443
TRIAL NO. B-1900691
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DAVID MCBRIDE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: Jaunary 6, 2023
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and
Jessica Moss, Assistant Public Defenders, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, PRESIDING JUDGE.
{¶1} This appeal concerns R.C. 2152.12(B), Ohio’s discretionary-bindover
statute. We are asked to determine the standard of proof necessary to support a
juvenile court’s determination under R.C. 2152.12(B) that a child is not amenable to
rehabilitation in the juvenile system as well as which party bears the burden of proof
regarding a child’s amenability to treatment.
{¶2} Defendant-appellant David McBride appeals the trial court’s judgment
convicting him, following a discretionary bindover from the juvenile court, of the
offenses of rape, attempted rape, public indecency, and burglary. McBride argues that
R.C. 2152.12(B) provides no standard of review for an appellate court to use when
reviewing the juvenile court’s determination that a child is not amenable to
rehabilitation within the juvenile system, nor does it address which party bears the
burden of proof concerning a child’s amenability to treatment. He urges this court to
hold that a juvenile court’s amenability determination must be supported by clear and
convincing evidence and that the state bears the burden of proof regarding
amenability.
{¶3} Both of these arguments were squarely addressed and rejected by the
Supreme Court of Ohio in State v. Nicholas, Slip Opinion No. 2022-Ohio-4276. We
follow Nicholas and hold that a juvenile court’s amenability determination must be
supported by a preponderance of the evidence, rather than clear and convincing
evidence, and that while the state bears the burden of persuasion regarding a child’s
amenability to treatment in the juvenile system, it is not required to produce
affirmative evidence of nonamenability.
{¶4} We further find no merit to McBride’s additional argument that the
juvenile court abused its discretion when it found that he was not amenable to
treatment in the juvenile system and transferred jurisdiction of his charges to the court
of common pleas, and we affirm the trial court’s judgment.
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McBride’s Crime Spree and Bindover
{¶5} On July 19, 2018, McBride, who was then 15 years old, was terminated
from a period of probation that he had been serving for his adjudication as a
delinquent for the offense of gross sexual imposition. On that same day, as well as on
July 23, 2018, McBride committed a series of offenses that resulted in the state filing
complaints in juvenile court charging him with acts which, if committed by an adult,
would have constituted the offenses of rape, attempted rape, kidnapping, and
burglary. With the exception of the complaint for burglary, each complaint
additionally alleged two firearm specifications.
{¶6} The state filed a motion for relinquishment of jurisdiction as to all
charges, which were subject to discretionary, rather than mandatory, transfer. The
juvenile court held a hearing to determine whether there was probable cause that
McBride committed the charged offenses.
A. Probable-Cause Hearing
{¶7} At the probable-cause hearing, Cincinnati Police Detective Charlene
Morton testified that she investigated a series of sexual offenses that occurred on July
19, 2018. Morton first investigated an offense of public indecency that occurred
around 4:30 in the afternoon, in which the suspect had approached a postal worker
while she was inside her vehicle. The suspect exposed himself, masturbated, and
asked the victim to perform oral sex on him. After the postal worker locked herself
inside the vehicle and called 911, the suspect fled.
{¶8} Morton also investigated an incident that occurred approximately one
hour later that same day. In that incident, the victim, M.H., witnessed the suspect
fondling himself in the parking lot of M.H.’s mother’s apartment complex while she
was taking out the trash for her mother. The suspect approached M.H. with a gun in
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OHIO FIRST DISTRICT COURT OF APPEALS
his hands, pointed the weapon at her head, pulled down his pants and exposed his
penis, and demanded that she perform oral sex on him. Terrified, M.H. complied with
the suspect’s demand and began to perform the sexual act. The act was interrupted by
another resident of the apartment complex, who yelled at the suspect, causing him to
flee.
{¶9} Morton last testified about an attempted rape that she investigated later
that same night that occurred in the same parking lot as the attack on M.H. In that
incident, the suspect approached the victim, S.S., as she exited from her vehicle. He
pointed a gun at her and demanded that she get back in her car. S.S. complied, and
once they were both in the car, the suspect exposed his penis and demanded that S.S.
perform oral sex on him. S.S. refused to comply. She was able to knock the suspect’s
hand away and flee from the car.
{¶10} Through her investigation, Morton developed McBride as a suspect in
these offenses.1 She prepared a photographic lineup and showed it to all three victims
and several witnesses. Neither the postal worker nor S.S. were able to make an
identification. But M.H., as well as both the resident who interrupted the suspect’s
attack on her, and another witness, identified McBride in the lineup.
{¶11} Morton testified that McBride admitted his involvement in these
offenses. He stated that the weapon used belonged to his sister, and that he had taken
it from her bedroom. A weapon was retrieved following a search of McBride’s sister’s
home, and McBride’s DNA was found on the weapon.
{¶12} Cincinnati Police Detective Charles Zopfi also testified at the probable-
cause hearing. Zopfi investigated an incident that occurred on July 23, 2018, at an
apartment complex on Clarion Avenue in Cincinnati. While exiting from her vehicle
in the parking lot of the apartment complex, the victim, T.B., witnessed a suspect
1 McBride raises no challenge to the juvenile court’s probable-cause determination in this appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
exposing himself and masturbating. T.B. entered her apartment building, and while
she was attempting to unlock her door, the suspect approached her and grabbed her
buttocks from behind. T.B. threatened to call the police, causing the suspect to flee.
Detective Zopfi developed McBride as a suspect in this incident, and he prepared a
photograph lineup to show to T.B. T.B. identified McBride in the lineup.
{¶13} Following the hearing, the juvenile court found probable cause that
McBride had committed the charged offenses.
B. Amenability Hearing
{¶14} The juvenile court subsequently conducted an amenability hearing to
determine whether McBride was amenable to rehabilitation in the juvenile system.
{¶15} Several of the victims of McBride’s offenses testified at the hearing.
M.H. testified that she forgave McBride and that she wanted the court to take mercy
on him. S.S. also asked the court to have mercy on McBride and testified that she did
not want him to be tried as an adult. T.B. described the offenses that McBride
committed against her. When asked by the juvenile court about the impact of those
offenses, she stated, “And then at home I’m thinking, you know, this is a place for me
to be safe and, you know, you never expect that someone would do that to you.”
{¶16} Lieutenant Bill Smith with the Xavier University Police Department
testified that McBride committed two acts of public indecency on Xavier’s campus in
2016. The offenses committed by McBride at Xavier were not part of the current case,
but the juvenile court allowed Smith to testify over McBride’s objection.
{¶17} Detective Morton testified that she was concerned with the escalation of
the offenses that she investigated. She explained that McBride’s first offense against
the postal worker involved him asking her for oral sex and exposing himself. McBride
then approached M.H. with a weapon and forced her to perform oral sex on him. And
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OHIO FIRST DISTRICT COURT OF APPEALS
he last approached S.S., again with a weapon, and forced her into her vehicle while
demanding that she perform oral sex on him. Detective Zopfi likewise testified
regarding his concern about the escalating violence in McBride’s offenses.
{¶18} McBride presented testimony from his sister Shanine Scott. Scott
testified that the charged incidents were not typical of McBride’s behavior throughout
his life, and that “the sexual thing with himself” began to develop in the preceding two
years when McBride began trying to figure out his sexual identity. Scott told the court
that McBride had been bullied, but that he was not a confrontational person and never
fought back. She also stated that he had watched pornography with a stepbrother and
had a bus driver speak with him about masturbation, but that McBride had not acted
out sexually after those experiences. Scott testified that McBride lived with his father
in Indianapolis for one summer, and that she believed his “masturbation issues”
started there.
{¶19} McBride presented what was essentially character testimony from both
Denishea Goodman and Gregory Goodrum. Goodman testified that she was the best
friend of McBride’s sister and that she viewed McBride as a brother. In Goodman’s
opinion, McBride’s family was not adept at dealing with emotions or conflicts, and
McBride did not receive the attention he needed, resulting in him becoming stressed
and experiencing depression.
{¶20} Goodrum testified that he taught McBride in both karate class and in
the Order of Pythagorans, an organization that taught youths how to run meetings and
taught them oratorical skills as well as math and physics skills. Goodrum testified that
McBride was a shining star in the program and had moved through the chairs at both
the local chapter and state level. He described McBride as shy, diligent, and smart.
According to Goodrum, he noticed a change in McBride after McBride’s mother
married his stepfather, stating that the marriage, as well as going through puberty,
“kind of changed him.”
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{¶21} McBride also presented testimony from two psychologists, Dr. Nicole
Leisgang, a psychologist appointed by the court to evaluate McBride’s amenability to
treatment and rehabilitation in the juvenile system, and Dr. Richard Rothenberg, a
psychologist retained by McBride for the same purpose.
{¶22} Leisgang testified that McBride presented as sad and overwhelmed. She
felt that he at times attempted to highlight his emotional difficulty, which she
explained was not uncommon in children. Leisgang was asked about her review of
McBride’s history, and she highlighted the following: that McBride had struggled
socially in school with peer rejection and bullying; that he was potentially the victim
of sexual abuse by his stepsister and physical abuse by his father; that McBride’s
parents were very willing to participate in services for him; and that McBride has
suffered from depression and has a history of suicidal ideation.
{¶23} Leisgang administered several psychological tests to McBride, including
the Malin Adolescent Clinical Inventory, the Adolescent Psychopathology Scale, and
the Risk Sophistication Treatment Inventory (“RSTI”). While she acknowledged that
these tests indicated that McBride was at a high risk for reoffending, she explained
that a high risk of reoffending did not equate to a lack of amenability to services in the
juvenile system.
{¶24} Leisgang issued a report opining that McBride was amenable to
rehabilitation in the juvenile system. The reported stated that:
David’s case is quite complicated. Within a very short time after
completing a residential and transition program, he re-offended. In
addition, there was a marked increase in the level of contact and
violence, evidenced by the presence of a weapon. Records indicate that
he allegedly victimized 4 women in less than one week (7/19 to 7/23).
Further the RSTI and OYAS were respectively indicative of high and
moderate risk of re-offending. An understanding of David is also quite
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OHIO FIRST DISTRICT COURT OF APPEALS
complex. He presents with significant emotional difficulty, although
there is an element of exaggeration to it. Nonetheless, he has been
complaint [sic] with medication while at the Youth Center. He also has
had no behavioral incidents, suggesting that he can benefit from a
structured and supervised setting. While he has been diagnosed with
PTSD, his caretakers now question the incidents used to establish this
diagnosis. While the issues are complex, it is my opinion, offered with
a reasonable degree of psychological accuracy, that the preponderance
of the evidence would suggest that given his young age and the services
still available within the juvenile court system (e.g., DYS), David
McBride is amenable to intervention.
{¶25} In support of her report, Leisgang testified that McBride presented with
numerous factors indicating that he was amenable to treatment, including his
significant emotional distress and the fact that he is bothered by his sexual urges. She
stated that the juvenile system can offer individual and group counseling, psychotropic
medication, and age-appropriate intervention, and that McBride, at the time of the
hearing, had five and a half years to be rehabilitated in the juvenile system.
{¶26} Leisgang also testified that the RSTI she administered contained a
Treatment Amenability Scale, and that McBride’s score fell in the middle offender
range of that scale. Leisgang’s report identified several risk factors pertaining to
McBride’s treatment amenability, including “past/current severe psychopathology,
ongoing behavior despite extensive treatment, and marginal acceptance of his own
responsibility.” But it also identified that McBride “scored low on other risks as he is
open to and expects change,” that he was distressed by his actions, and that he had
positive attachments.
{¶27} On cross-examination, Leisgang was questioned about the statement in
her report that McBride tended to exaggerate certain things about himself. She
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stressed that McBride was highlighting, rather than malingering, and that he did so
for an adaptive purpose because he was scared, rather than in an attempt to “con the
system.” Leisgang recognized that her report stated that “the pervasiveness of his
comments raises concerns as to whether he was purposely trying to present himself in
a negative light” and reflected that she had concerns that he was intentionally trying
to highlight his difficulties. But she maintained that, as an adolescent, McBride was
not attempting to engage in manipulation.
{¶28} Leisgang also acknowledged on cross-examination that McBride had
previously received sexual-offender treatment at the Village Network, a residential
treatment facility, that his discharge summary following that treatment indicated that
he had developed sufficient coping skills to handle his issues, and that McBride
committed several of the offenses with which he was currently charged on the day that
he was terminated from probation for the offenses for which he had received the
sexual-offender treatment at the Village Network. Leisgang testified that while the
discharge summary may have been correct at the time it was written, the skills
currently possessed by McBride were not sufficient for him to manage his stressors.
{¶29} Rothenberg also opined that McBride was amenable to rehabilitation in
the juvenile system. He issued a report stating that “Although David is at a well above
average risk of sexual recidivism it is my opinion offered with a reasonable degree of
psychological accuracy, that the preponderance of the evidence would suggest that
given his relatively young age and the services available within the juvenile justice
system, David is amenable to treatment.” The report further stated:
David would benefit from participating in sex offender specific
treatment. Based on his history and current risk and protective factors
I believe David’s least restrictive environment for treatment would be
an inpatient residential facility, most likely the Ohio Department of
Youth Services (DYS). He would likely benefit from participating in
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both individual and group therapy. Treatment should focus on his
ability to identify his risk factors related to his inappropriate sexual
behavior and how to manage his sexual feelings in an appropriate
manner when he does experience them. His treatment should also
include basic sexual education, social skills development and a better
understanding of the concept of consent in regards to sexual
relationships and appropriate sexual boundaries.
{¶30} Rothenberg testified in accordance with his report, stating that the best
treatment for McBride would be trauma-specific cognitive behavioral therapy, which
he had not previously received. He opined that although McBride was chronologically
almost 16 years old, he functioned at a much younger age both emotionally and
psychologically.
{¶31} Rothenberg discussed the prior treatment that McBride had received at
the Village Network, stating that McBride’s progress in that treatment was slow and
difficult, but that he made a significant amount of progress at the end of treatment.
He stated that McBride’s discharge papers reflected that there remained unresolved
problems and that McBride needed to honestly address trauma symptoms and
anxieties related to his family unit. Rothenberg also testified about the notes that he
had reviewed from McBride’s time at the Talbert House following his discharge from
the Village Network. Those notes reflected that McBride lacked a good understanding
of risk factors and of his relapse-prevention plan.
{¶32} Rothenberg testified that he had administered the Personality
Assessment Inventory for Adolescents to McBride, and that the results of that test
indicated that McBride was open to treatment and acknowledged that there were
issues he needed to work on. Rothenberg’s report discussed these test results and
cautioned that “the nature of some of [McBride’s] problems suggest that treatment
would be fairly challenging with a difficult treatment process and the probability of
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OHIO FIRST DISTRICT COURT OF APPEALS
reversals.” The report also stated that the test results reflected an element of
exaggeration in complaints and problems. Rothenberg testified that the noted
exaggerations were more a sign of distress than of malingering or feigning of
symptoms.
{¶33} Rothenberg was questioned specifically on why he felt that McBride was
amenable to rehabilitation in the juvenile system, and he stated the following: that
McBride’s high risk of recidivism did not mean that he was not amenable to treatment;
that McBride was not psychologically or emotionally mature enough for adult court;
that McBride’s age indicated that his brain would continue to mature and develop,
thus increasing his ability to apply treatment concepts successfully; and that McBride
had accepted responsibility for his actions and had expressed genuine remorse and
guilt.
{¶34} McBride spoke at the amenability hearing, stating that he had
previously contained his emotions and tried to forget about them, which led to him
expressing his emotions in unhealthy ways. He told the court that after he finished his
earlier treatment, he felt that he needed additional treatment because his feelings had
not improved or changed. According to McBride, he has realized that his prior
treatment did not help him establish an understanding of why he acted the way he did.
He apologized for his actions and asked for the chance to be treated in the juvenile
system.
{¶35} The last witness to testify at the amenability hearing was Thomas Brock,
a Hamilton County juvenile probation supervisor. Brock testified about the treatment
program offered at the Village Network, which McBride successfully completed. He
also discussed the sexual-offender treatment offered at other DYS facilities.
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OHIO FIRST DISTRICT COURT OF APPEALS
C. The Juvenile Court’s Amenability Determination
{¶36} The juvenile court issued an entry finding that McBride was not
amenable to care or rehabilitation within the juvenile system and granting the state’s
motion for relinquishment of jurisdiction.
{¶37} In support of its decision to transfer jurisdiction, the court noted that
McBride sexually assaulted four women, causing them both physical and psychological
harm; that the victims of McBride’s offenses were vulnerable due to their location and
physical circumstances; that McBride had no relationship with any of the victims and
targeted strangers, which elevated his risk for dangerousness and likelihood for
reoffending; that McBride acted alone; that McBride’s acts involved a concerning level
of planning and organization and evidenced an escalation in conduct and violence;
that McBride used a firearm in the commission of three of the offenses; that the
offenses were committed contemporaneously with McBride’s release from probation;
that McBride had previously been adjudicated delinquent for gross sexual imposition
and had completed intensive, residential sex-offender treatment followed by
outpatient sex-offender treatment; that McBride continued to reoffend despite the
existence of strong family support and successful completion of sex-offender
treatment; that despite Leisgang’s testimony to the contrary, the witness testimony
and McBride’s testing scores, including the manipulation of psychological testing to
his benefit, demonstrated that he was mature enough for transfer; and that, as
evidenced by McBride’s serial sexual offending and minimization of his responsibility
for his conduct, there was not sufficient time to rehabilitate McBride in the juvenile
system without compromising public safety.
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D. Trial Court Proceedings
{¶38} Following the juvenile court’s transfer of jurisdiction, McBride pled
guilty to rape with an accompanying weapon specification, attempted rape, public
indecency, and burglary. The trial court imposed an agreed sentence of 18 years of
imprisonment.
{¶39} McBride now appeals.
Challenges to R.C. 2152.12(B)
{¶40} In his first assignment of error, McBride raises several arguments
concerning R.C. 2152.12(B), Ohio’s discretionary-bindover statute.
{¶41} R.C. 2152.12(B) provides that:
Except as provided in division (A) of this section, after a complaint has
been filed alleging that a child is a delinquent child for committing an
act that would be a felony if committed by an adult, the juvenile court at
a hearing may transfer the case if the court finds all of the following:
(1) The child was fourteen years of age or older at the time of the act
charged.
(2) There is probable cause to believe that the child committed the act
charged.
(3) The child is not amenable to care or rehabilitation within the juvenile
system, and the safety of the community may require that the child be
subject to adult sanctions. In making its decision under this division,
the court shall consider whether the applicable factors under division
(D) of this section indicating that the case should be transferred
outweigh the applicable factors under division (E) of this section
indicating that the case should not be transferred. The record shall
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indicate the specific factors that were applicable and that the court
weighed.
{¶42} McBride contends that the statute does not provide a standard of proof
for the juvenile court to apply when determining under R.C. 2152.12(B)(3) whether a
juvenile offender is amenable to care or rehabilitation in the juvenile system, and he
urges this court to hold that a juvenile court’s amenability determination must be
supported by clear and convincing evidence. He additionally argues that R.C.
2152.12(B) is silent as to which party bears the burden of proof regarding a child’s
amenability to treatment in the juvenile system. On that point, he asks this court to
hold that the state bears the burden of proving that a child is not amenable to
treatment.
A. No Waiver of Argument
{¶43} Before turning to the merits of McBride’s arguments, we consider the
state’s assertion that McBride failed to preserve them for appellate review. The state
argues that McBride failed to raise these arguments concerning R.C. 2152.12 below,
and hence has waived them on appeal. The law is well settled that “[i]ssues not raised
in the trial court may not be raised for the first time on appeal because they are deemed
waived.” In re A.T., 1st Dist. Hamilton Nos. C-170467, C-170468 and C-170469, 2018-
Ohio-2899, ¶ 12.
{¶44} During closing arguments at the amenability hearing, McBride argued
that “We do object for the record to the plain language of Revised Code 2152.12 in
regards to the factors, that they require essentially a presumption of guilt prior to any
adjudication or finding of guilt. We also object to any counting or calculating of factors
as it violates David’s right to fundamental fairness.” While McBride did not phrase his
argument below in the precise manner that he has on appeal, we hold that his
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contentions were sufficient to preserve his arguments concerning R.C. 2152.12 for
appellate review.
B. An Amenability Determination Must be Supported by a Preponderance of the
Evidence
{¶45} We first consider McBride’s argument that a juvenile court’s
amenability determination under R.C. 2152.12(B)(3) must be supported by clear and
convincing evidence.
{¶46} The Supreme Court of Ohio recently considered—and rejected—this
same argument in Nicholas, Slip Opinion No. 2022-Ohio-4276. In holding that a
juvenile court’s amenability determination under R.C. 2152.12(B)(3) must be
supported by a preponderance of the evidence, the court held that:
R.C. 2152.12(B)(3) requires a juvenile court to weigh the factors in R.C.
2152.12(D) in favor of transfer against the factors in R.C. 2152.12(E)
against transfer. To find that a juvenile is not amenable to treatment in
the juvenile system, the court need only conclude that the factors that
favor transfer outweigh the factors that counsel against transfer. By
requiring only a simple outweighing, R.C. 2152.12(B) by its terms
establishes a preponderance-of-the-evidence standard for deciding a
juvenile’s amenability.
* * *
This holding comports with other decisions of this court. For example,
in determining that the standard of proof under R.C. 2305.02, a
wrongful-conviction statute, was “the usual preponderance of the
evidence standard,” this court wrote, “The General Assembly, had it
wanted to do so, knew how to specify a ‘clear and convincing standard.’
” Walden v. State, 47 Ohio St.3d 47, 53, 547 N.E.2d 962 (1989). The
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Revised Code contains many statutes that expressly impose a clear-and-
convincing-evidence standard of proof. See, e.g., R.C. 2152.14(E)
(requiring findings by clear and convincing evidence to invoke the adult
portion of a serious-youthful-offender disposition); R.C. 5120.17(B)(4)
(requiring clear and convincing evidence of an inmate’s mental illness
to transfer the inmate to a psychiatric hospital); R.C. 2151.414(B)(1)
(requiring clear and convincing evidence that it is in a child’s best
interest to grant permanent custody of the child to a public children-
services agency or private child-placing agency). R.C. 2152.12(B)(3)
contains no such language. Rather, the statutory language is wholly
consistent with a preponderance-of-the-evidence standard of proof.
Id. at ¶ 29 and 30.
{¶47} The court additionally considered Nicholas’s argument that, regardless
of the clear statutory language, the constitutional guarantee of due process requires
use of a clear-and-convincing standard to determine a juvenile’s amenability to
rehabilitation in the juvenile system. Id. at ¶ 31. In rejecting that argument, the court
first noted that “The United States Supreme Court has held that a preponderance-of-
the-evidence standard is inadequate to satisfy due-process requirements in certain
types of cases.” Id. at ¶ 33. It referenced a few such types of cases, including a civil
state-law proceeding for the involuntary commitment of an individual to a mental
hospital. The court then recognized that the high court had never set forth a similar
requirement in situations involving the transfer of jurisdiction from a juvenile court
to an adult court, stating:
The United States Supreme Court “has never attempted to prescribe
criteria for, or the nature and quantum of evidence that must support, a
decision to transfer a juvenile for trial in adult court.” Breed v. Jones,
421 U.S. 519, 537, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). For purposes of
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transferring a case from juvenile court to adult court, the Supreme Court
has held, albeit without specifically addressing the required standard of
proof, that the requirements of due process are satisfied when a juvenile
court issues a decision stating its reasons for the transfer after first
conducting a hearing at which the juvenile is represented by counsel.
Kent [v. United States], 383 U.S. [541,] at 557, 86 S.Ct. 1045, 16 L.Ed.2d
84 [(1966)]. And federal circuit courts have gone further, expressly
holding that the Due Process Clause of the United States Constitution
does not require a clear-and-convincing-evidence standard with respect
to juvenile-transfer decisions. See, e.g., United States v. Juvenile Male,
554 F.3d 456, 460 (4th Cir.2009); United States v. Doe, 49 F.3d 859,
868 (2d Cir.1995); United States v. T.F.F., 55 F.3d 1118, 1122 (6th
Cir.1995); United States v. A.R., 38 F.3d 699, 703 (3d Cir.1994); United
States v. Parker, 956 F.2d 169, 171 (8th Cir.1992); United States v.
Brandon P., 387 F.3d 969, 976-977 (9th Cir.2004). We agree with those
courts.
Id. at ¶ 34.
{¶48} We follow Nicholas and hold that a juvenile court’s amenability
determination under R.C. 2152.12(B)(3) must be supported by a preponderance of the
evidence and not clear and convincing evidence.
D. Burden of Proof
{¶49} We now turn to McBride’s argument that the state bears the burden of
proving pursuant to R.C. 2152.12(B)(3) that a child is not amenable to rehabilitation
in the juvenile system. The Supreme Court of Ohio also considered this same
argument in Nicholas.
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{¶50} The Nicholas court first explained that the term “burden of proof”
encompassed two different aspects of proof, the burden of production and the burden
of persuasion. Nicholas, Slip Opinion No. 2022-Ohio-4276, at ¶ 25. It elucidated the
difference between these two concepts, stating:
The party having the burden of production on a particular issue will lose
on that issue as a matter of law if the party does not produce evidence
sufficient to make out a case for the trier of fact. State v. Robinson, 47
Ohio St.2d 103, 107, 351 N.E.2d 88 (1976). The burden of persuasion,
on the other hand, “refers to the risk which is borne by a party if the
[trier of fact] finds that the evidence is in equilibrium.” Id. “The party
with the burden of persuasion will lose if he fails to persuade the trier of
fact that the alleged fact is true by such quantum of evidence as the law
demands.” Id.Id.
{¶51} While acknowledging that the party who files a motion typically bears
the burden of production with respect to the motion, the Nicholas court recognized
that the discretionary-transfer statute presented somewhat of a unique situation
because the statutory language required the juvenile court itself to order an
investigation before considering whether transfer to adult court was appropriate. Id.
at ¶ 26. In so concluding, it relied on the language of R.C. 2152.12(C), which provides
that when considering a discretionary transfer under R.C. 2152.12(B), the court “shall
order an investigation into the child’s social history, education, family situation, and
any other factor bearing on whether the child is amenable to juvenile rehabilitation,
including a mental examination of the child by a public or private agency or a person
qualified to make the examination.” R.C. 2152.12(C).
{¶52} The Nicholas court held that while the statute did not preclude the
parties from producing additional evidence regarding the child’s amenability, “it is
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OHIO FIRST DISTRICT COURT OF APPEALS
evident from R.C. 2152.12 that the General Assembly did not intend to preclude
discretionary transfer based on the state’s failure to produce affirmative evidence of
nonamenability.” Nicholas at ¶ 26. It further held that while the state did not bear the
burden of production, it did bear the ultimate burden of persuasion to convince the
juvenile court to transfer a child’s case to adult court. Id. at ¶ 27.
{¶53} Following Nicholas, we reject McBride’s argument that the state should
be required to bear the burden of proving that a child is not amenable to rehabilitation
in the juvenile system and hold that “while the state bears the ultimate burden of
persuasion on the question of a juvenile’s nonamenability to treatment and
rehabilitation in the juvenile system, the state need not produce affirmative evidence
of nonamenability.” Id. at ¶ 57.
{¶54} McBride’s first assignment of error is accordingly overruled.
No Abuse of Discretion in Transfer of Jurisdiction
{¶55} In his second assignment of error, McBride argues that the juvenile
court abused its discretion when it found that he was not amenable to rehabilitation
in the juvenile system and transferred his case to adult court for criminal prosecution.
{¶56} As set forth above, R.C. 2152.12(B) provides that the juvenile court may
transfer a child’s case to adult court if it finds that the child was at least 14 years old at
the time the offense was committed, there existed probable cause that the child
committed the charged offenses and that the child was not amenable to care or
rehabilitation in the juvenile system. In making the required amenability
determination, the juvenile court shall consider “whether the applicable factors under
division (D) of [R.C. 2152.12] indicating that the case should be transferred outweigh
the applicable factors under division (E) of [R.C. 2152.12] indicating that the case
should not be transferred.” R.C. 2152.12(B)(3). The juvenile court record “must
19
OHIO FIRST DISTRICT COURT OF APPEALS
‘indicate the specific factors that were applicable and that the court weighed.’ ” State
v. Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184, ¶ 14, quoting R.C.
2152.12(B)(3).
{¶57} As correctly identified by McBride, we review a juvenile court’s
amenability determination for an abuse of discretion. Id. at ¶ 15. We stated in
Marshall that:
R.C. 2152.12 is silent with regard to how a juvenile court should weigh
the factors in R.C. 2152.12(D) and (E). Thus, the juvenile court has the
discretion to determine how much weight should be accorded to any
given factor. See State v. Morgan, 10th Dist. Franklin No. 13AP-620,
2014-Ohio-5661, ¶ 37. “As long as the court considers the appropriate
statutory factors and there is some rational basis in the record to
support the court’s findings when applying those factors, [this court]
cannot conclude that the trial court abused its discretion in deciding
whether to transfer jurisdiction.” State v. West, 167 Ohio App.3d 598,
2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).
Id.; see State v. Ramsden, 12th Dist. Clinton No. CA2020-11-016, 2021-Ohio-3071, ¶
23. An abuse of discretion indicates “more than a mere error of law or judgment; it
implies that the trial court’s decision was unreasonable, arbitrary, or unconscionable.”
State v. Griffin, 2020-Ohio-3707, 155 N.E.3d 1028, ¶ 38 (1st Dist.).
{¶58} In determining that McBride was not amenable to rehabilitation in the
juvenile system, the juvenile court considered the factors in R.C. 2152.12(D) and (E)
weighing in favor of and against transfer. In its entry relinquishing and transferring
jurisdiction, the court specifically discussed its findings with respect to each factor.
The court’s reasons in support of its decision to transfer jurisdiction are set forth in
detail above.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶59} McBride specifically contends that the court abused its discretion by
ignoring two expert reports stating that he was amenable to rehabilitation in the
juvenile system. “[A] juvenile court in making an amenability determination is
entitled to disagree with the opinion of a medical expert and may take into account the
severity of the offenses when considering whether a juvenile is mature enough for
transfer and whether enough time exists to rehabilitate in the juvenile-justice system.”
Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184, at ¶ 21. But while a trial
court is not required to automatically accept an expert opinion, the court may not
arbitrarily disregard the opinion of the expert and must provide an objective reason
for ignoring it. State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶
71; State v. Weaver, Slip Opinion No. 2022-Ohio-4371, ¶ 33.
{¶60} Both Leisgang and Rothenberg opined that McBride was amenable to
rehabilitation in the juvenile system. The juvenile court acknowledged and considered
their opinions in its entry. In rejecting the experts’ opinions that McBride was not
emotionally, physically, or psychologically mature enough for transfer, the juvenile
court stated:
Dr. Leisgang testified that in her professional opinion, the Defendant
was not emotionally mature enough for a transfer to adult court.
Although the doctor opined this position in court, the written report is
virtually silent on whether the Defendant’s emotional functioning falls
below his chronological age. The Court notes that the witness testimony
and the Defendant’s testing scores show that he is in fact, mature. The
Defendant was given an RSTI Interview and received high scores on his
Sophistication and Maturity. This scale is comprised of three clusters
including autonomy, cognitive capacities, and emotional maturity. Dr.
Leisgang further noted that the Defendant’s test scores on this scale
were suggestive of anti-social behavior. Additionally, testimony
21
OHIO FIRST DISTRICT COURT OF APPEALS
presented during the trial portrayed the Defendant as a contemplative,
intelligent, and mature individual who adapted to different situations
and easily assumed leadership roles.
Finally, the Court notes a level of maturity and sophistication in that the
Defendant tends to manipulate psychological testing to his benefit.
Each professional that interviewed the Defendant makes note that he
emphasizes his perceived weaknesses or struggles and minimizes his
abilities. The Court finds that the Defendant attempted to skew testing
results in the Defendant’s favor and minimize his culpability in the
offenses. Evidence was presented that established that the Defendant
is emotionally, physically, and psychologically mature.
* * *
As discussed above, the Defendant has shown that he is a mature and
high functioning individual as evidenced by his sophisticated and
calculated planning when committing these acts. The Court does take
the Defendant’s age into account, and looked very closely at the
testimony of Dr. Leisgang and Dr. Rothenberg in their explanation of
the development of a child’s brain and the maturity of any 15 year old.
However, the Court finds that sufficient evidence was presented to
establish the Defendant is in fact emotionally, physically and
psychologically mature enough for a transfer.
{¶61} As evidenced by these statements, the juvenile court provided an
objective reason for disregarding the experts’ opinions that McBride was not mature
enough for a transfer. The juvenile court relied on the results of the psychological test
administered by Leisgang, as well as the experts’ own testimony that the test results
indicated that McBride attempted to highlight his weakness and reflected an element
of exaggeration in his complaints and problems. The testimony of Goodrum,
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OHIO FIRST DISTRICT COURT OF APPEALS
McBride’s own witness, supported the juvenile court’s statements about McBride’s
maturity and leadership skills.
{¶62} McBride additionally argues that the juvenile court erroneously
disregarded the experts’ testimony that there was sufficient time to rehabilitate him in
the juvenile system. His argument concerns the juvenile court’s finding under the
factor in favor of transfer set forth in R.C. 2152.12(D)(9), which states, “There is not
sufficient time to rehabilitate the child within the juvenile system.” It also concerns
the factor against transfer set forth in R.C. 2152.12(E)(8), which states, “There is
sufficient time to rehabilitate the child within the juvenile system and the level of
security available in the juvenile system provides a reasonable assurance of public
safety.”
{¶63} In rejecting the experts’ opinions and finding that there was not
sufficient time to rehabilitate McBride, the juvenile court stated:
According to the evidence presented, the Defendant received intensive
residential and outpatient therapy and rehabilitation services. The
evidence is uncontroverted that the Defendant is at an extremely high
risk for reoffending, and presents as an extremely dangerous offender.
He continued to engage in inappropriate sexually deviant behaviors,
minimized his responsibility for this conduct and displayed limited
insight into the dynamics behind his sexually offending behavior. More
problematic is that the Defendant’s serial sexual offending is
accelerating in frequency and aggression with the most recent rape
charges that were perpetrated with a firearm. Based on the record
before the Court, the evidence is compelling that the Defendant cannot
be rehabilitated in the time remaining within the juvenile system
without compromising public safety.
* * *
23
OHIO FIRST DISTRICT COURT OF APPEALS
The evidence is overwhelming and uncontroverted that the Defendant’s
treatment needs are significant and complex requiring lengthy and
protracted interventions to address his higher risk for reoffending.
Based upon the record and considering the time remaining under the
jurisdiction of the Juvenile Court, the Defendant poses an unacceptably
high risk for serious reoffending. The risk and danger to the community
is too great and the risk of reoffending is too high for the Defendant to
be rehabilitated within the juvenile court.
{¶64} The juvenile court again provided objective reasons for disregarding the
experts’ opinions on these factors. The record clearly contains support for the juvenile
court’s concerns for public safety and the escalating violence involved in McBride’s
offenses. And further support for the juvenile court’s determination that there does
not exist sufficient time to rehabilitate McBride in the juvenile system can be found in
Rothenberg’s report, which cautioned that “the nature of some of [McBride’s]
problems suggest that treatment would be fairly challenging with a difficult treatment
process and the probability of reversals.”
{¶65} McBride also contends that the juvenile court improperly relied on his
previous adjudication and sexual-offender treatment to find that he cannot be
rehabilitated in the juvenile system. On this point, the juvenile court stated that:
The new offenses were committed contemporaneously with the
Defendant’s release from probation. According to the evidence
presented, an administrative entry dated 07/19/18 terminated the
Defendant from official probation, which is the same date as three of the
four sexual assaults. Non-reporting probation remained in effect until
the Defendant’s 21st birthday. The Defendant may not have been aware
of his termination from probation. This leaves the Court with two
conclusions. Either the Defendant was aware that his probation had
24
OHIO FIRST DISTRICT COURT OF APPEALS
ended and committed these violent sexual offenses, or in the alternative,
the Defendant was not aware that his probation had ended and he
committed these violent and severe sexual acts while on probation. In
either scenario, these multiple sexual offenses represent a severe
escalation from his prior history of sexual offending behavior that
included a 2016 adjudication of delinquency for Gross Sexual
Imposition.
{¶66} McBride’s commission of multiple new offenses on the date that he was
released from probation was an appropriate factor for the court to consider. See R.C.
2152.12(D)(6) (the juvenile court shall consider whether “[a]t the time of the act
charged, the child was awaiting adjudication or disposition as a delinquent child, was
under a community control sanction, or was on parole for a prior delinquent child
adjudication or conviction.”). The juvenile court’s consideration of McBride’s prior
treatment in juvenile court was also appropriate. See R.C. 2142.12(D)(7) (the juvenile
court shall consider whether “[t]he results of any previous juvenile sanctions and
programs indicate that rehabilitation of the child will not occur in the juvenile
system.”).
{¶67} As McBride correctly asserts, the record contained testimony about
whether the sexual-offender treatment that he received for his 2016 adjudication
would be the same treatment that he would receive if he was rehabilitated for the
current offenses in the juvenile system. But the record does not indicate that the
juvenile court based its decision to transfer jurisdiction on the lack of available
treatment in juvenile court, which would have been improper. As the Supreme Court
of Ohio recently held in Nicholas, Slip Opinion No. 2022-Ohio-4276, at ¶ 55, “[t]he
conflation of the distinct issues of amenability and available services is especially
inappropriate in Ohio because R.C. Chapter 2152 does not limit a juvenile court’s
dispositional options to DYS commitment should the juvenile court retain
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OHIO FIRST DISTRICT COURT OF APPEALS
jurisdiction,” and consequently a juvenile court “may not base a decision to transfer a
child to adult court on a perceived lack of DYS resources when the General Assembly
has made available other options should the need for those additional resources arise.”
{¶68} While the juvenile court recognized that McBride had previously
received sexual-offender treatment in juvenile court, it notably did not base its
decision to transfer jurisdiction on a lack of available services in juvenile court. When
considering R.C. 2152.12(D)(7), the court stated:
As a result of this adjudication [for gross sexual imposition] and the
recommendations from the Risk Assessment and Psychological
Evaluation by Dr. Dreyer, the Defendant completed intensive,
residential sex offender treatment and rehabilitation services at The
Village Network followed by outpatient sex offender treatment at the
Talbert House Safeguard Program. In these programs, the Defendant
received age appropriate Individual Therapy, Group Therapy, Family
Therapy, and Cognitive Behavioral Therapy (CBT) which included the
Pathways Treatment curriculum, a juvenile sex offender specific
therapy. The Defendant also received trauma informed treatment, art
therapy, music therapy, as well as therapy for emotional regulation,
anger management, empathy development, relationship issues, anxiety
and impulse management, social and coping skills, trauma recovery,
thinking errors and relapse prevention. The Defendant received
medication and med-somatic services. Finally, the Defendant
developed relapse prevention plans in each of his programs.
The Defendant had strong family support, structure and nurturance
from his mother and from positive adult role models in the community.
Despite the existence of strong family and community connections
coupled with the benefits that should have been associated with
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OHIO FIRST DISTRICT COURT OF APPEALS
successful completion of intensive, age appropriate and sex offender
specific treatment, the Defendant continued to reoffend and escalate his
behaviors in an extreme and rapid fashion.
{¶69} Following our review of the record, we find no abuse of discretion in the
juvenile court’s determination that McBride was not amenable to rehabilitation in the
juvenile system. We do not take lightly the impact of a transfer of jurisdiction on a
juvenile. But in this case, the record clearly reflects that the juvenile court considered
the appropriate statutory factors, and it contains a rational basis to support the
juvenile court’s findings with respect to those factors. See Marshall, 1st Dist. Hamilton
No. C-150383, 2016-Ohio-3184, at ¶ 15. The juvenile court issued a well-thought-out
and thorough decision and did not act unreasonably, arbitrarily, or unconscionably in
finding that McBride was not amenable to rehabilitation in the juvenile system.
{¶70} McBride’s second assignment of error is overruled.
Conclusion
{¶71} For the reasons set forth in this opinion, we hold that a juvenile court’s
amenability determination under R.C. 2152.12(B)(3) must be supported by a
preponderance of the evidence, and that while the state is not required to produce
affirmative evidence of nonamenability, it does bear the ultimate burden of persuasion
on the question of a juvenile’s amenability to rehabilitation in the juvenile system. We
further hold that the juvenile court did not abuse its discretion in determining that
McBride was not amenable to rehabilitation in the juvenile system, and we affirm the
trial court’s judgment.
Judgment affirmed.
BERGERON, J., concurs in judgment only.
CROUSE, J., concurs in part and dissents in part.
27
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, J., concurring in part and dissenting in part.
{¶72} I concur with the lead opinion’s holding regarding the preponderance-
of-the-evidence standard and the burden of proof because those issues were recently
conclusively decided by the Supreme Court of Ohio in State v. Nicholas, Slip Opinion
No. 2022-Ohio-4276. However, because I believe that the juvenile court abused its
discretion in granting the state’s motion for relinquishment of jurisdiction, I must
respectfully dissent from that portion of the lead opinion.
{¶73} Pursuant to the Nicholas case, the prosecution has the “burden of
persuasion” in an amenability hearing. Nicholas at ¶ 27. Furthermore, in deciding
whether a juvenile should be transferred to the adult system, the court “need only
conclude that the factors that favor transfer outweigh the factors that counsel against
transfer,” which is a preponderance-of-the-evidence standard. Id. at ¶ 29. “ ‘[A]
preponderance of evidence means the greater weight of evidence. * * * The greater
weight may be infinitesimal, and it is only necessary that it be sufficient to destroy the
equilibrium.’ ” (Citations omitted.) Id.
{¶74} Our review of the juvenile court’s decision is for an abuse of discretion.
Thus, in order to reverse a juvenile court’s decision to transfer a juvenile to the adult
system, this court must find that the juvenile court abused its discretion by finding
that a preponderance of the evidence weighed in favor of a transfer. After a thorough
review of the record, I would hold that the juvenile court abused its discretion.
{¶75} What is so concerning to me about this case, is that two experts–one
appointed by the court and one hired by the defense–testified that they believed
McBride was amenable to treatment in the juvenile system. Both testified that
although McBride had previously received treatment in the system for a prior offense,
this treatment was not long enough because it was only for a year, not individualized,
and did not include an appropriate release prevention plan. Both experts believed that
McBride required much longer, age-appropriate, and more regular, individualized
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OHIO FIRST DISTRICT COURT OF APPEALS
treatment. Both experts opined that DYS could adequately deliver such treatment
during the five years McBride had left in the juvenile system. There was no evidence
presented that DYS could not provide McBride with this type of treatment.
{¶76} The experts explained that even though McBride was at a high risk for
reoffending, this does not equate to lack of amenability. Both experts explained that
McBride was interested in treatment, had treatable mental-health issues, accepted
responsibility and was remorseful for what he had done, and had the support of his
family. Both experts explained that a juvenile’s brain is malleable, which makes him
more receptive to treatment and rehabilitation. Both agreed that as McBride ages, his
impulse control will improve, and he will be able to better apply the treatment
concepts.
{¶77} Dr. Leisgang, the court-appointed expert, testified:
There are rare instances of a 15-year-old who presents with such
glibness, such psychopathy, which even is amenable within juveniles
– * * * – there’s no interest in treatment that, yes, there is the possibility
that that 15-year-old – it would be a recommendation of transfer.
But in general, it’s kind of – the point of Juvenile Court is to rehabilitate
based on the malleable function of the brain.
{¶78} Dr. Leisgang explained that for the safety of the community, McBride
needed to be in a structured environment for five years. When asked by the prosecutor
if “this is basically saying lock him up for five years either way,” Dr. Leisgang
responded, “Well, DYS is actually a more protective factor than prison.”2 Dr. Leisgang
2 In this context, a “protective factor” refers to a “characteristic at the biological, psychological,
family, or community (including peers and culture) level that is associated with a lower likelihood
of problem outcomes or that reduces the negative impact of a risk factor on problem outcomes.”
O’Connell, Boat & Warner, Preventing Mental, Emotional, and Behavioral Disorders Among
Young People: Progress and Possibilities (2009),
https://www.ncbi.nlm.nih.gov/books/n/nap12480/pdf/ (accessed Dec. 28, 2022).
29
OHIO FIRST DISTRICT COURT OF APPEALS
referred to studies that have established that the recidivism for transferred youth is
significantly higher than nontransferred youth.
{¶79} Furthermore, both experts opined that McBride was not psychologically
or emotionally mature enough to be transferred into the adult system. Dr. Rothenberg,
the defense expert, explained that even though McBride was almost 16 years old, he
was functioning emotionally and psychologically at a much lower level.
{¶80} The juvenile court disregarded this compelling and uncontroverted
testimony.
{¶81} The lead opinion correctly notes that a court may disagree with expert
opinions. However, a court may not arbitrarily disagree with or ignore expert opinions,
which is what I believe the juvenile court did in this case.
{¶82} An “expert opinion ‘may not be arbitrarily ignored, and some reason
must be objectively present for ignoring expert opinion testimony.’ ” (Emphasis sic.)
State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 71, quoting
United States v. Hall, 583 F.2d 1288, 1294 (5th Cir.1978). The trial court must “set
forth [some] rational basis grounded in the evidence for rejecting the uncontradicted
testimony of two qualified experts in the field of psychology.” Id. at ¶ 70; see Weaver,
Slip Opinion No. 2022-Ohio-4371, at ¶ 33.
{¶83} I disagree with the lead opinion that the trial court based its disregard
for the expert’s opinions on objective evidence. Rather, it appears that the trial court
merely substituted its own assessment of McBride for that of the experts. “While the
trial court is the trier of fact, it may not disregard credible and uncontradicted expert
testimony in favor of either the perceptions of lay witnesses or of the court’s own
expectations of how [the defendant] would behave. Doing so shows an arbitrary,
unreasonable attitude toward the evidence before the court and constitutes an abuse
of discretion.” White at ¶ 74.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶84} The trial court did not make any findings that the expert witnesses
appearing before it lacked either credentials or credibility. Rather, the court found that
despite Dr. Leisgang’s testimony to the contrary, McBride’s testing scores and “the
witness testimony” showed that he was “emotionally, physically, and psychologically
mature” enough for a transfer.
{¶85} The Sophistication/Maturity Scale referenced in Dr. Leisgang’s report
and relied upon by the trial judge to come to his determination that McBride was
mature enough for a transfer, stated that McBride’s score “fell in the high range and is
suggestive of anti-social behavior.” It went on to state that “[r]isk factors include
past/current negative self-concept, problems delaying gratification, poor emotional
regulation and limited interpersonal skills.” The trial judge correctly noted that the
report was silent on whether he was mature enough for a transfer to adult court, but
the court, on its own, interpreted McBride’s scores in this area to mean that he was.
This is despite the fact that Dr. Leisgang testified that he was not.
{¶86} The trial judge also completely ignored the testimony of Dr. Rothenberg
that McBride was not emotionally, physically, or psychologically mature enough for a
transfer. It is an abuse of discretion for a court to completely disregard expert
testimony, especially when it has not made a finding that the expert lacked credentials
or credibility.
{¶87} The witness testimony the court relied on to support its rejection of the
expert testimony on lack of maturity was from Gregory Goodrum. Goodrum was a
mentor to McBride from age six until McBride moved to Indiana to live with his father,
sometime around the time that McBride entered puberty. While Goodrum did testify
that McBride was diligent and smart and exhibited leadership skills when he was
younger, he also testified that he noticed a change in him when his mother and
stepfather got together and he went through puberty. Goodrum testified that McBride
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OHIO FIRST DISTRICT COURT OF APPEALS
began struggling and not doing very well. Certainly, such testimony cannot be
construed to mean that McBride was mature enough for a transfer. Even if Goodrum’s
testimony could be so construed, a trial court may not disregard credible and
uncontradicted expert testimony in favor of the perceptions of lay witnesses.
Goodrum’s testimony is not an objective reason for ignoring two expert opinions to
the contrary.
{¶88} While the court was free to take into consideration McBride’s high risk
of reoffending and concerns for public safety, those issues were addressed by both
expert witnesses, who testified that this does not equate to lack of amenability. The
court reasoned that because McBride previously was provided with one year of sex-
offender treatment by DYS, additional treatment for five years in DYS would not help,
despite the experts’ extensive testimony to the contrary. It did not base its rejection of
the expert testimony on any objective reason other than the court’s belief that because
treatment in the juvenile system did not work before, then it most likely would not
work again.
{¶89} If the legislature had intended past failure of treatment to be dispositive,
then it could have required transfer of all repeat offenders. Instead, the legislature
required an individual assessment of rehabilitation potential. The experts opined that
such potential existed, and the court disregarded the opinions without a basis in
evidence, other than the mere fact of lack of prior success and the severity of the
current charges.
{¶90} The court further found that McBride “has no signs of * * * serious
mental illness.” First, R.C. 2152.12(E)(7) states that a factor weighing against a transfer
is that “[t]he child has a mental illness,” not a serious mental illness. Second, the court
acknowledged that McBride “has been diagnosed with Exhibitionistic Disorder,
Paraphilic Disorder and Major Depressive Disorder with Anxiety.” Nevertheless, the
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OHIO FIRST DISTRICT COURT OF APPEALS
court seemed to discount these diagnoses because it believed McBride may have been
exaggerating or feigning his symptoms due to comments made in a competency
evaluation by a different expert witness who did not testify at the hearing. Both experts
who did testify were questioned extensively about whether they believed McBride was
malingering, and each responded that in his or her expert opinion he was not. In fact,
Dr. Rothenberg testified that he interpreted McBride’s exaggeration “more as a sign of
distress than any kind of malingering or feigning of symptoms.”
{¶91} It is clear to me that the heinous facts of this case clouded the court’s
judgment, leading it to conclude that this child was not worthy of any further attempts
at rehabilitation and instead deserved to be warehoused in an adult prison. In fact, the
court wrote in its findings of fact and conclusions of law that “[t]his is a unique case,
and the most grave and extreme case the Court has seen involving a juvenile sex
offender.” But case facts should be considered to determine whether the juvenile is
amenable to treatment in the juvenile system and not whether the juvenile should be
punished in the adult system. As stated by the Supreme Court of the United States,
“Roper and Graham emphasized that the distinctive attributes of youth diminish the
penological justifications for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution
rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not
as strong with a minor as with an adult.’ ” Miller v. Alabama, 567 U.S. 460, 472, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012), quoting Graham v. Florida, 560 U.S. 48, 71, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010), quoting Tison v. Arizona, 481 U.S. 137, 149, 107
S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Roper v. Simmons, 543 U.S. 551, 571, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005).
{¶92} Because the juvenile court’s decision was unreasonable, arbitrary, and
unconscionable in that it completely disregarded the uncontroverted testimony of two
experts without any rational basis grounded in the evidence, I would hold that the
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OHIO FIRST DISTRICT COURT OF APPEALS
court abused its discretion in requiring that McBride be transferred to the adult system
to face adult sanctions. Accordingly, I respectfully dissent from the portion of the lead
opinion that holds otherwise.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
34